Philadelphia- [Law.com]- Congress suffered yet another setback Thursday in its ongoing efforts to shield children from sexually explicit content on the Internet when a federal judge struck down the Child Online Protection Act, a 1998 federal law that makes it a crime for commercial Web site operators to allow children access to “harmful” material.

Senior U.S. District Judge Lowell Reed Jr. said he was forced to conclude that the law violates the First Amendment — but also said he wasn’t happy to do so.

Reed said that “despite my personal regret at having to set aside yet another attempt to protect our children from harmful material,” he also recognized, as Justice Anthony Kennedy did in striking down a flag-burning statute, that judges have a duty at times to make decisions they do not like.

But Reed said he also concluded that allowing the Child Online Protection Act (COPA) to take effect would actually do more harm to children in the long run.

“Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection,” Reed wrote in his 84-page opinion in ACLU v. Gonzales.

The crux of Reed’s reasoning in striking down the law was that there are less-restrictive means available for protecting children than a criminal statute that will have a chilling effect. Parents, Reed said, can protect their children through software filters and other means that do not limit the rights of others to free speech.

The law would have criminalized Web sites that allow children to access material deemed “harmful to minors” by “contemporary community standards.” The sites would have been expected to require a credit card number or other proof of age. Penalties included a $50,000 fine and up to six months in prison.

Sexual health sites, the online magazine Salon.com and other Web sites backed by the American Civil Liberties Union challenged the law.

The U.S. Supreme Court in 2004 upheld a temporary injunction Reed had issued early in the case that blocked the law from ever taking effect.

But Justice Department lawyers nonetheless pressed on with the case — despite the high court’s finding that the plaintiffs were likely to succeed — and called expert witnesses who testified that filtering software is burdensome and ineffective.

Experts called by the ACLU, however, said that parents now have more serious concerns than Web sites with pornography. Nowadays, they said, the threat of online predators has caused worries among parents whose children use social-networking sites such as MySpace.

ACLU Executive Director Anthony D. Romero hailed the ruling as a victory for free speech on the Internet, saying “After nearly a decade of legal proceedings, the First Amendment has emerged victorious from the government’s illegal attempt at online censorship.”

The lead ACLU lawyer on the case, Chris Hansen, said: “Technology evolves at an incredibly rapid pace, and our laws face the challenge of trying to keep up. Americans have the right to participate in the global conversation that happens online every moment of every day, and Congress does not have the right to censor that conversation.”

Reed said he sympathized with Congress, but was forced to conclude that the law is unconstitutional because it would have a chilling effect on speech and was not narrowly designed.

“I agree with Congress that its goal of protecting children from sexually explicit materials on the Web deemed harmful to them is especially crucial,” Reed wrote. “This court, along with a broad spectrum of the population across the country yearn for a solution which would protect children from such material with 100 percent effectiveness.”

But Reed said he was also “acutely aware” of his duty to uphold the First Amendment and said “I may not turn a blind eye to the law in order to attempt to satisfy my urge to protect this nation’s youth by upholding a flawed statute, especially when a more effective and less restrictive alternative is readily available.”

Reed said he recognizes that the filtering software programs available to parents “are neither a panacea nor necessarily found to be the ultimate solution to the problem at hand.”

But when compared with COPA, Reed said, the filtering software is a more effective solution for the problem.

“Although filters are not perfect and are prone to some over and under blocking, the evidence shows that they are at least as effective, and in fact, are more effective than COPA in furthering Congress’ stated goal for a variety of reasons,” Reed wrote.

One significant limitation of COPA, Reed said, is that it does not reach beyond the United States to cover foreign Web sites with sexually explicit material.

By contrast, Reed said, filters have no such limitation and can block sexually explicit foreign material on the Web.

Another flaw in COPA, Reed found, is that it is “over-inclusive” because it “applies to speech that is obscene as to all minors from newborns to age 16, and not just to speech that is obscene as to older minors.”

Filtering software is better, Reed said, because “parents can customize filter settings depending on the ages of their children and what type of content they find objectionable, and filters are fairly easy to install and use.”

Reed also rejected the argument by Justice Department lawyers that any problems with the law were cured by the “affirmative defenses” Congress included that allow Web site operators to avoid liability by requiring a credit card to gain access.

“The affirmative defenses cannot cure COPA’s failure to be narrowly tailored because they are effectively unavailable,” Reed wrote.

Instead, Reed found that credit cards “are not an effective age verification device” because card issuers prohibit the use of their credit or debit cards to verify age and because a significant number of minors have access to credit cards.

Government lawyers insisted that the credit card defense is not burdensome to commercial pornographers because they already accept credit cards to sell their content.

But Reed disagreed, saying that argument revealed the government’s “fundamental misunderstanding of the reach of COPA: COPA does not apply merely to commercial pornographers but to a wide range of speakers on the Web.”

Due to the broad wording of the statute, Reed said, the law “clearly covers far more speakers on the Web than those who might be defined as commercial pornographers.”

Specifically, Reed found that the law’s use of the terms “commercial purposes” and “engaged in the business” would allow for COPA to be applied to “an inordinate amount of Internet speech.”

As a result, Reed concluded that COPA “facially violates the First and Fifth amendments” because it is “impermissibly vague and overbroad” and was not “narrowly tailored to Congress’ compelling interest,” and the government failed to prove that the statute is the “least restrictive, most effective alternative” in achieving the compelling interest of protecting minors.